On 16th August 2012, Australia’s highest court upheld a government law on mandatory packaging for cigarettes that removes brand colours and logos from packaging. The law requires cigarettes to be sold in olive green packets, with graphic images warning of the consequences of smoking. Leading global tobacco manufacturers, including British American Tobacco and Philip Morris have argued that removing their brand names and company colours from packets will lead to a drastic cut in profits and that it may result in fake products entering the market.
The European Union will publish a draft revision to its 2001 Tobacco Products Directive in the autumn, and may introduce more stringent rules on packaging as well as extend legislation to newer tobacco products such as electronic cigarettes. Once the directive’s revision is completed, it will need the approval of the EU’s 27 countries and over 700 members of the European Parliament before it can become law.
In 2004 Ireland became the first country in Europe (and in the world) to establish an unequivocal ban on smoking in workplaces. Italy followed a few months later. Before the law came into effect, it was just “unthinkable” for the Irish to picture a pint of Guinness without a cigarette on the side or a smoking-free restaurant in Italy at lunch time. According to national surveys though most of the populations of both countries are pleased with this regulation and can perceive the benefits that this measure brought to society.
The heavy stance taken by the Australian government sets a strong example for the European Commission which has been dealing with regulation on tobacco advertisement for almost 3 decades but still has to face powerful lobbying from giant tobacco manufacturers.
A long story
The initiation of an anti-tobacco agenda started in June 1985 when the European Council approved the “Europe Against Cancer” programme. There are speculations that having Delors and Mitterand’s children been diagnosed with cancer contributed to the shifting of this priority up in the EC’s agenda setting.
The current anti-smoking legislation in the EU is regulated through Directive 2003/33/EC on the “approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products” that came into effect on 31th July 2005. This directive banned tobacco advertisement on most media but did not include advertising in cinemas, billboards and merchandising.
The second step forward was given by the 98/43 EC General Directive on “the advertising and sponsorship of tobacco products”. The adoption of this directiverequired over eight years and eventually turned out to be a complete failure when two years later the German government argued that the directive’s provisions went against the structural principles necessary for the implementation of a fully integrated single market.
The Annulment of Directive 98/43
In 2000 the ECJ focused on the Case C-376/98 Germany vs. EP and Council of the European Union. The legal assumption was that the European ban on tobacco sponsorship was illegitimate, as it was built up within the wrong legal basis. The Court expressed how the Directive was not a measure to enforce the single market but it actually represented an issue to be dealt with under the health domain.
This judgment scarcely interpreted the powers of Communitarian legislation to adopt measures for the achievement of the internal market. Moreover, it testified the authority at the Member States’ disposal and demonstrated that the powers of EU institutions were significantly circumscribed. Communitarian legislation regarding the internal market does not substitute state regulatory intervention. The annulment of the 98/43 EC shed light on a sentiment favouring slackening of integration and greater complaisance to nation states. As the completion of the internal market seems to be getting closer and closer, the ECJ might find that the political-economic costs of further integration override its advantages and decide to take a firmer position.
As a consequence, the Berlaymont carried out a new line intended to respect the limits of legislation of the internal market. The directive was adopted “relatively quickly” this time (in 2003) and in 2004 the use of dissuasive images, as a method of discouraging smokers and potential smokers, came into law.
Have these measures been effective? The Commission expects reports every 5 years by the Member States to test how implementation has been carried out. But can we really trust national appointees to truthfully self condemn non-compliance of tobacco legislation?
Tobacco and Formula 1: Dangerous Friends
The significance of the power held by external interest groups in the tobacco-related decision making process is fully represented by the intrusion of the Formula 1 management board which firmly opposed any constraint on tobacco advertisement (as this represented one of their main sources of revenue).
The first encroachment happened in October 1997 when FIA President Max Mosley sent a letter to European governments pointing out his dissent over any ban on tobacco advertisement. Then, Mosley and “F1 Supremo” Bernie Ecclestone officially met British PM Tony Blair at Downing Street to discuss the matter. A few days later Mosley threatened to pull F1 out of Europe in a move that visibly lacked credibility considering that if F1 was withdrawn from Europe the relative loss was obviously on the F1 board’s side.
Nevertheless, at the time Labour Party officials decided that Grand Prix racing should be exempted from any ban and Public Health Minister Tessa Jowell tried to encourage other European Health Ministers to accept this “opt-out”. This was not the end of the story though. A month later, the sponsorship of tobacco in the F1 domain started heating up. Governmental turmoil was raised in Britain when it was revealed that Ecclestone donated 1 Million Pounds to the Labour Party.
Following media crack-down and fears that business and political interests would be seen as dangerously close friends Mosley announced that the FIA “might” apply a worldwide ban on tobacco advertising if it is proven that tobacco sponsorship leads to people starting smoking. It was only in 2006 that the FIA approved the decision to ban all forms of tobacco sponsorship when representatives of the most prominent tobacco industry created a common agreement to end sports sponsorships.
The F1 case shows how dominant interests external from the EU sphere of influence could (and still can) play a salient role in domains (internal market and health issues) that should strictly belong to the Commission’s competence.
A version of this article was originally published in Lo Spazio della Politica